In Arizona v. United States, the Supreme Court refused to enjoin Section 2(B) of Arizona’s infamous SB 1070, which requires local police to investigate immigration status during a lawful stop or arrest if they have reasonable suspicion of unlawful presence. However, the Court cautioned that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.” The case of Jimenez-Domingo v. Holder, which is currently pending in the Eleventh Circuit Court of Appeals, confirms that the Court had good cause for concern.

Following a routine traffic stop, the Palm Beach Gardens Police Department detained several Latino passengers, including Mr. Jimenez-Domingo, for over an hour to await the arrival of Customs and Border Protection (CBP) officers, who later placed him into removal proceedings. Arguing that he had been unconstitutionally detained in violation of the Fourth Amendment, Mr. Jimenez-Domingo — who is represented by Rebecca Sharpless and law student Ian Shaw at the University of Miami School of Law’s Immigration Clinic — sought to suppress subsequently obtained evidence that gave rise to the charges that he was unlawfully present in the United States.

Arguments to suppress evidence of alienage often hinge on whether noncitizens have been subject to an “egregious” violation of the Fourth Amendment. This standard stems from the Supreme Court’s 1984 ruling in INS v. Lopez-Mendoza that evidence obtained by federal immigration officers in violation of the Fourth Amendment may generally not be suppressed in immigration proceedings unless the violation was “egregious.” The Court at the time reasoned that the costs of suppressing unconstitutionally obtained evidence in immigration proceedings normally outweighed the benefits of deterring future unlawful conduct by federal immigration officers. However, as the American Immigration Council argued in an amicus brief in Jimenez-Domingo, the changing face of immigration enforcement warrants a different cost-benefit analysis today.

In 1984 when Lopez-Mendoza was decided, over 97.5% of noncitizens charged with violating the immigration laws agreed to leave the United States voluntarily without a formal hearing. Because so few hearings took place, the Supreme Court reasoned that arresting officers would not be deterred from using unlawful tactics to gather evidence by the prospect that such evidence might be suppressed. Today, however, more than 220,000 removal hearings take place every year, and less than half the noncitizens charged with immigration law violations opt for voluntary departure.

The increasing involvement of local police in immigration enforcement is also noteworthy. A critical factor that influenced the Court’s decision in Lopez-Mendoza was the existence of a “comprehensive scheme” for deterring federal immigration officers from committing Fourth Amendment violations. Most local police officers, however, do not receive federal immigration training, and they are not subject to federal regulations that limit the stop-and-arrest authority of federal immigration officers. Moreover, such officers are accustomed to operating in the realm of criminal law, where evidence obtained in violation of the Fourth Amendment is frequently suppressed. This practice is specifically intended to deter unlawful police conduct.

With respect to societal costs, the Supreme Court’s primary concern in Lopez-Mendoza was that allowing the suppression of unconstitutionally obtained evidence in immigration proceedings would require the courts to close their eyes to ongoing criminal offenses. However, the Court clarified in Arizona v. United States that unlawful presence alone is not a continuing criminal act and acknowledged that allowing the continued presence of removable noncitizens may, under certain circumstances, be consistent with federal immigration policy.

In short, the immigration enforcement arena has changed significantly since the Supreme Court decided Lopez-Mendoza. A similar change in the relevant legal framework is long overdue.